Opinion
No. 2-12-0161
2013-09-23
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEWAUN TATE, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Du Page County.
No. 08-CF-3228
Honorable
George J. Bakalis
Judge, Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Hutchinson and Jorgensen concurred in the judgment.
ORDER
¶ 1 Held: Contrary to defendant's claim that he was given only a "perfunctory" hearing on his motion to withdraw his guilty plea and vacate the judgment, the trial court afforded defendant a hearing on the merits, with the opportunity to present evidence. The court did not abuse its discretion in deciding that defendant had failed to show misapprehension of law or fact or set forth a defense worthy of consideration. The court also did not abuse its discretion in deciding that defendant failed to demonstrate doubt about his guilt that would be better served by submitting the cause for trial. ¶ 2 Defendant, Dewaun Tate, pleaded guilty to first degree murder (720 ILCS 5/9-1(a)(3) (West 2012)) in exchange for a sentence cap of 50 years' imprisonment and the dismissal of other charges. Before sentencing, defendant moved to withdraw his plea, and the State moved to strike the motion. The trial court granted the State's motion, holding that defendant's allegations were vague, not supported by affidavit, and rebutted by the record. The court imposed a 35-year prison term. Through counsel, defendant filed an amended motion to withdraw his plea, which was denied, not stricken. ¶ 3 On appeal, defendant argues that "the truncated procedure used by the court ran the substantial risk that a meritorious motion was rejected." Defendant asks this court to reverse the circuit court's order and remand the cause for further proceedings on his amended motion to withdraw the plea. The record indicates that the original motion was stricken without prejudice and that defense counsel renewed the motion without attempting to introduce evidence when afforded the opportunity to do so. We affirm the trial court's denial of the amended motion to withdraw the plea on the ground that defendant failed to introduce sufficient evidence.
¶ 4 FACTS
¶ 5 On December 18, 2008, defendant was charged by indictment with multiple counts of first degree murder, armed robbery, robbery, and burglary. Defendant also was charged with several unrelated offenses. On June 10, 2011, defendant entered a negotiated plea of guilty to count VI, which charged felony murder based on armed robbery as the predicate offense. In exchange, the prosecution agreed to a sentence cap of 50 years' imprisonment and the dismissal of all other pending charges. ¶ 6 The State provided a factual basis for the plea. Seneca Berry would testify that, on November 20, 2008, he, defendant, and Jerry Lockhart went to the Dollar Plus Store in Hanover Park to commit a robbery. The original plan called for Berry and defendant to distract the cashier, Vatsala Thakker, in the back of the store while Lockhart took the money from the cash register. However, Lockhart backed out of the plan at the last minute, so defendant alone distracted Thakker in the back of the store. Berry would testify that, as he was stealing from the register, he saw defendant stab Thakker twice in the back. Thakker died as a result of the attack. ¶ 7 At the June 10, 2011, guilty plea hearing, the trial judge admonished defendant that (1) he must serve 100% of any sentence levied against him, (2) he was giving up his right to a jury or a bench trial and his right to cross-examine witnesses or present witnesses on his own behalf, and (3) he had the right to persist in his plea of not guilty. The court also admonished defendant of the terms of the plea agreement, including that, without an agreement, the sentencing range was 20 to 60 years' imprisonment. ¶ 8 During the colloquy, defendant affirmed that he was pleading guilty voluntarily, no one had forced him or coerced him to plead guilty, and he was pleading guilty of his own free will. He also affirmed that, outside of the plea agreement, no one had made any promise or representation to him to induce him to plead guilty. When asked if he understood the charges and the nature of the plea, defendant indicated that he fully understood both the nature of the plea and the charges against him. Defendant's plea was entered and the court ordered a pre-sentence report. The cause was continued for a sentencing hearing. ¶ 9 On August 23, 2011, defense counsel notified the court that defendant had made certain out-of-court statements that raised concerns regarding his fitness for sentencing. The court appointed Dr. John Murray, a psychologist, to examine defendant. Dr. Murray reported that there was no bona fide doubt as to defendant's fitness. At a subsequent hearing in October 2011, defense counsel acknowledged receiving Dr. Murray's report and stated his intent to file a motion to withdraw defendant's guilty plea. ¶ 10 On November 29, 2011, counsel filed a motion to withdraw the plea, alleging that defendant's mother had pressured him into pleading guilty, and submitting an affidavit by defendant to that effect. Further alleging that defendant did not understand the admonishments, the motion cited Dr. Murray's findings that defendant had an IQ of 70 and read at the kindergarten level. Counsel also filed a certificate of compliance as required by Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). ¶ 11 In response, the State filed a motion to strike the motion to withdraw the guilty plea. The State's motion alleged that (1) defendant failed to state with particularity the manner in which his plea was not voluntary and (2) defendant's statements in the plea colloquy directly contradicted the allegations in the motion to withdraw the plea. At the hearing, the State argued that, based on the lack of particularity in defendant's affidavit and defendant's own contradictory statements in the plea colloquy, defendant had no basis to withdraw his guilty plea. ¶ 12 The trial court agreed with the State and struck the motion to withdraw defendant's guilty plea. The court methodically cited instances of defendant testifying that he understood the rights he was waiving and the nature of the proceedings. The court also cited Dr. Murray's report in which he opined that defendant understood the proceedings. The court noted that, contrary to defendant's new claim of coercion by his mother, defendant had answered that no one had pressured him to plead guilty. ¶ 13 On January 27, 2012, defendant was sentenced to 35 years' imprisonment. At the sentencing hearing, the court admonished defendant that, inter alia, he could file a motion to reconsider his sentence. ¶ 14 On February 8, 2012, defendant filed an amended motion to withdraw his guilty plea. As with the first motion, counsel attached a certificate of compliance and an affidavit in which defendant claimed coercion by his mother. Counsel added to the motion a claim that, at the time of the guilty plea, the court failed to admonish defendant that he could not move to reconsider the sentence. The motion also alleged that defendant would not have pleaded guilty had he known that he could not challenge his sentence. Acknowledging that the original motion to withdraw the plea had been stricken, counsel stated that he was renewing the motion to preserve defendant's claims. Counsel stood on the written motion without calling any witnesses or introducing any other evidence. The State did not renew its motion to strike. ¶ 15 On the same day, the court denied the amended motion, reiterating its holding that defendant's testimony in the record established that he had understood the proceedings and had pleaded guilty voluntarily. The court also found that, because defendant was not entitled to an admonishment that he could not move to reconsider the sentence (see People v. Linder, 186 Ill. 2d 67, 74 (1999)), the omission of the admonishment was not error. This timely appeal followed.
¶ 16 II. ANALYSIS
¶ 17 A. Standard of Review
¶ 18 Defendant appeals from the circuit court's disposition of his two motions to withdraw the guilty plea. A defendant has no absolute right to withdraw a guilty plea. People v. Mercado, 356 Ill. App. 3d 487, 494 (2005). Rather, to withdraw a guilty plea, a defendant must establish a recognized basis for such withdrawal. Mercado, 356 Ill. App. 3d at 494. "Specifically, a defendant may withdraw a guilty plea '[w]here it appears that the plea of guilty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel or the State's Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, or where the accused has a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury.' "Mercado, 356 Ill. App. 3d at 494 (quoting People v. Morreale, 412 Ill. 528, 531-32 (1952)). ¶ 19 Ordinarily, we review a trial court's ruling on a motion to withdraw a guilty plea under the abuse of discretion standard. Mercado, 356 Ill. App. 3d at 494 (citing People v. Jamison, 197 Ill. 2d 135, 163 (2001)). Such a ruling is an abuse of discretion only where the circuit court's decision is arbitrary, fanciful, or unreasonable or where no reasonable person would take the circuit court's view. See People v. Morgan, 197 Ill. 2d 404, 455 (2001). ¶ 20 Defendant contends that the truncated procedure used by the circuit court ran the substantial risk that a meritorious motion was rejected, and that proper procedure required the court to provide a full evidentiary hearing in which the defense counsel could submit evidence in favor of withdrawal of the plea. Defendant argues that the striking of the original motion to withdraw his plea is subject to de novo review because (1) Rule 604(b) does not authorize a motion to strike a motion to withdraw a guilty plea and (2) the rules of civil practice are the only authority for such a motion to strike. Defendant characterizes the State's motion to strike as one for dismissal (735 ILCS 5/2-615 (West 2012)) or for summary judgment (735 ILCS 5/2-1005 (West 2012)). ¶ 21 A motion to dismiss filed under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)) challenges the legal sufficiency of a complaint based on defects apparent on its face. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). In comparison, summary judgment is appropriate where the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012); Klitzka v. Hellios, 348 Ill. App. 3d 594, 597 (2004). Section 2-619.1 of the Code permits a combined motion for dismissal pursuant to section 2-615 and for summary judgment under 2-1005, but section 2-619.1 requires that a combined motion be in parts and that each shall be limited to and shall specify the section under which it is made. 735 ILCS 5/2-619.1 (West 2012). After suggesting in passing that the State's motion to strike was defective in that it failed to comply with section 2-619.1, defendant urges us to review de novo the trial court's decision to strike the original motion to withdraw the plea. ¶ 22 We need not consider defendant's novel argument on the applicability of sections 2-615 and 2-1005 to the trial court's decision to strike the original motion to withdraw the guilty plea. The record rebuts defendant's claim that the trial court used a "truncated procedure." Although the court entered an order striking the motion, it made a detailed finding of fact which in substance acted as a denial of the motion. The court struck the motion without prejudice and afforded defense counsel the opportunity to file an amended motion. When counsel did so, he stood on the motion without introducing any evidence to support defendant's claims that he misunderstood the proceedings and was coerced by his mother to plead guilty. Without evidence to support defendant's claims and rebut the record, the trial court denied the amended motion, accordingly. ¶ 23 Relying on People v. Tejada-Soto, 2012 IL App (2d) 110188, defendant argues that he was not given a full hearing. In a prior appeal, Tejada-Soto successfully challenged the denial of his motion to withdraw a negotiated guilty plea and vacate the judgment; and on remand, newly appointed counsel filed a new motion to withdraw the guilty plea and vacate the judgment. Tejada-Soto, 2012 IL App (2d) 110188, ¶ 7. At the hearing on the motion, counsel asked the trial court to take judicial notice of the testimony at the hearing on the prior motion and argued that Tejada-Soto should be allowed to withdraw his plea. Counsel pointed out that, at the prior hearing, Tejada-Soto had testified that (1) trial counsel had only a few quick meetings with him, (2) trial counsel had pressured him to enter a guilty plea, (3) trial counsel assured him of a shorter prison term, and (4) when trial counsel described an Alford plea (North Carolina v. Alford, 400 U.S. 25 (1970)) as a "plea of convenience," Tejada-Soto, who required an interpreter, believed he needed to plead guilty for "convenience sake." Tejada-Soto, 2012 IL App (2d) 110188, ¶ 7. Counsel argued that Tejada-Soto pleaded guilty because he mistakenly believed that he had no other option. Tejada-Soto, 2012 IL App (2d) 110188, ¶ 7. ¶ 24 The trial court denied the motion to withdraw the plea and vacate the judgment, noting that it "had the opportunity to review the file in its entirety, to review the transcripts." . Tejada-Soto, 2012 IL App (2d) 110188, ¶ 8. The court also noted that it had a "vivid recollection" of the case, particularly of certain photographs of the victim that the court felt would have been given significant weight at sentencing. The court concluded that trial counsel had advised Tejada-Soto to enter a negotiated plea because it was likely that a trial would have resulted in a sentence that was significantly longer than the one he received following entry of the guilty plea. Tejada-Soto, 2012 IL App (2d) 110188, ¶ 8. ¶ 25 On appeal, Tejada-Soto argued that another remand was necessary because he received only a "perfunctory" hearing on the new motion to withdraw the plea and vacate the judgment. We affirmed the denial, holding that a defendant seeking to withdraw his plea is entitled to a hearing that is "meaningful," but only in the very limited sense that it is not a "mere charade." (Emphasis in original.) Tejada-Soto, 2012 IL App (2d) 110188, ¶ 14 (citing People v. Porter, 258 Ill. App. 3d 200 (1994), People v. Oliver, 276 Ill. App. 3d 929 (1995), and People v. Whitmore, 313 Ill. App. 3d 117 (2000)). We determined that the hearing on the renewed motion was not an improper, "purely formal exercise." Tejada-Soto, 2012 IL App (2d) 110188, ¶ 14. We emphasized that Tejada-Soto's new attorney not only submitted a new motion, but offered argument on the motion that referred to Tejada-Soto's testimony at the prior hearing. Moreover, the trial court indicated that it had the opportunity to review the file in its entirety and review the transcripts. The trial court also explained in some detail the basis for its ruling on the motion filed by Tejada-Soto's new attorney. Tejada-Soto, 2012 IL App (2d) 110188, ¶ 14. ¶ 26 Defendant argues that, unlike Tejada-Soto, he was given only a perfunctory hearing when the trial judge struck the motion to withdraw the guilty plea and declined to order a full evidentiary hearing on the merits. We disagree. One could argue that striking the original motion to withdraw the plea would have been improperly perfunctory had the trial court not allowed defendant to file an amended motion after the original motion was stricken. However, the trial court afforded defendant the opportunity to file an amended motion to withdraw the plea and vacate the sentence. When counsel filed the amended motion, he did not attempt to introduce evidence, and nothing in the record suggests that the trial court would have barred him from doing so. It appears from the record that counsel simply lacked evidence to substantiate defendant's nebulous claims of misapprehension and coercion. ¶ 27 Defendant does not address the standard of review for the denial of the amended motion to withdraw the plea. The court relied on its earlier detailed findings based on Dr. Murray's report and its own recollection of the evidence. The court's consideration of Dr. Murray's report and defendant's statements in the prior proceedings indicates that the court considered evidence outside the four corners of the written motion. Because the trial court relied on evidentiary findings to deny the amended motion to withdraw the guilty plea, the ruling is subject to the traditional abuse-of-discretion standard of review.
¶ 28 B. Denial of Amended Motion to Withdraw Guilty Plea
¶ 29 1. Misunderstanding of procedure
¶ 30 Defendant contends that he does not fully understand the legal system, as he was relatively young when he was arrested for this crime had never been "locked up" before. Defendant supports this allegation primarily by referring to his alleged cognitive deficiencies, as outlined in the psychological report from Dr. Murray. The State easily refuted this claim during argument at the hearing. ¶ 31 First, the State pointed to defendant's extensive criminal record, including multiple prior arrests, several instances of incarceration and numerous encounters with the police. Second, the State pointed to defendant's apparent awareness of specific salient details of the sentencing guidelines related to the truth-in-sentencing statute (730 ILCS 5/3-6-3 (West 2012)), which most likely would be known only to someone familiar with the legal system. Third, the State pointed to defendant's plea colloquy in the record, where defendant repeatedly indicated to the trial judge that he understood the nature of both the charges against him and the ramifications of a guilty plea.
¶ 32 2. Coercion
¶ 33 Defendant further claims that he was pressured into submitting the guilty plea by his mother, and filed an affidavit to this effect. Appellate counsel acknowledges that during the plea colloquy on June 11, 2011, defendant confirmed that he had not been coerced or forced into pleading guilty. However, counsel suggests that defendant did not have the intellectual capacity to understand the concepts of "coercion" and "force." In support of this claim, counsel refers to Dr. Murray's report which indicated defendant exhibited an IQ of 70 and an inability to read beyond a kindergarten level. Appellate counsel speculates that defendant's low IQ and reading level caused him to be unduly influenced by his mother, but counsel does not specify any expert testimony or other evidence that was wrongly excluded from the proceedings and should be presented on remand. ¶ 34 The State accurately points out that defendant's affidavit, in which he alleges that he had been pressured by his mother to plead guilty, contains no details or specifics as to the manner of coercion, and nothing in the record indicates that coercion was witnessed by defendant's attorney or anyone else. Further, in the plea colloquy, defendant stated that he had not been coerced to plead guilty.
¶ 35 3. Sentencing
¶ 36 Defendant concedes on appeal that Illinois Supreme Court Rule 402 (eff. July 1, 1997) does not require a warning that a guilty plea entered in exchange for a sentence cap effectively precludes a sentencing challenge. See Linder, 186 Ill. 2d at 74. However, defendant claims that he would not have pleaded guilty had he not been erroneously admonished by the court that he could file a motion to reconsider his sentence. In support of this argument, defendant relies heavily on People v. Edmonson, 408 Ill. App. 3d 880 (2011), in which Edmonson agreed to plead guilty to certain offenses in exchange for a 20-year sentence cap. Edmonson, 408 Ill. App. 3d at 881. Before Edmonson entered his guilty plea, his attorney erroneously told him that he could file a motion to renegotiate his sentence. Edmonson, 408 Ill. App. 3d at 883. Edmonson later testified that he would not have pleaded guilty had he known that he could not challenge the 15-year sentence he ultimately received. Edmonson, 408 Ill. App. 3d at 883. We held that Edmonson should be allowed to withdraw his plea because his counsel "affirmatively misinformed" him of his right to challenge the sentence and he would not have pleaded guilty if he had been correctly informed. Edmonson, 408 Ill. App. 3d at 886-87. ¶ 37 Defendant asserts that, at the very least, Edmonson stands for the proposition that the option of sentence reduction may form a critical part of the plea process, which affects the voluntariness of the plea. While the trial court's erroneous instruction in this case is comparable to the erroneous advice in Edmonson, the cases are distinguishable on two grounds. First, Edmonson was incorrectly advised by his attorney (Edmonson, 408 Ill. App. 3d at 883), while defendant was misinformed by the court. Second, the erroneous advice in Edmonson was given before the guilty plea, unlike in this case, where the erroneous admonishment was given after defendant had pleaded guilty. Because the court made its erroneous statement well after defendant entered his guilty plea, the instruction could not have affected defendant's decision to plead guilty. ¶ 38 In sum, we hold that the trial court did not abuse its discretion in denying the amended motion to withdraw the guilty plea. The relevant evidence consisted of Dr. Murray's report, defendant's testimony at the guilty plea hearing, and defendant's self-serving affidavit that accompanied his amended motion. Based on this evidence, the trial court concluded that defendant's plea was not a result of a misapprehension of the facts or the law or the consequence of misrepresentation by counsel or the prosecution. Noting that defendant did not allege a doubt of his guilt, the court rejected the notion that he has a defense worthy of consideration by a jury. Here, the trial court's reliance on defendant's own testimony in the record and Dr. Murray's report was not unreasonable, arbitrary, or fanciful, and therefore, is not an abuse of discretion.
¶ 39 III. CONCLUSION
¶ 40 Defendant characterizes the hearing on the motion to withdraw his guilty plea and vacate the judgment as a "truncated procedure" that deprived him of full evidentiary hearing. The trial court found that defendant's vague allegations in his motion and affidavit were directly rebutted by the record and the psychological report of Dr. Murray. We conclude that the trial court did not abuse its discretion in denying defendant's amended motion to withdraw his guilty plea. ¶ 41 For the preceding reasons, the order denying defendant's amended motion to withdraw his guilty plea is affirmed. ¶ 42 Affirmed.